Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—N.D. Ohio: DOT faces trial on bisexual air traffic controller’s hostile environment, retaliation claims, (Aug 25, 2026)

By Kathleen Kapusta, J.D.

The employee received a letter at his home stating, among other things, “No one wants your queer bait around, not us and not management.”

Citing evidence a bisexual air traffic controller was subjected to rumors that he and his wife were swingers and that he liked men, that his work area was defaced on several occasions with homographic slurs and pornography—including an image of Fred Flintstone and Barney Rubble engaging in oral sex—and that the DOT failed to take corrective action based on his complaints, a federal court in Ohio denied summary judgment on the employee’s Title VII hostile work environment sexual harassment claim. Although his disparate treatment claim failed for lack of comparator evidence, his retaliation claim also survived the agency’s motion based on, among other things, evidence the DOT did not honestly believe the employee’s purported infractions were the real reason for his punishment ( Miller v. Secretary of the U.S. Department of Transportation , No. 1:23-cv-02315 (N.D. Ohio Aug. 21, 2026)).

Alleged harassment. The employee and his then-wife began working for the FAA in its Cleveland Center in 2008. He claimed that in 2016, rumors spread that they were swingers and that the employee liked men. In March 2016, he purportedly received a package at his home that was “a cylinder tube with the words, ‘big ass dildos’ and ‘platinum member’ on the outside.” Included in the package was his water bottle from work. He reported it to his supervisor who told him not much could be done.

In 2019, the employee alleged, his supervisor remarked that he was working overtime to pay for his wife’s abortion. The employee and his wife separated around that time. In 2020, someone in the office allegedly hung up an image of Fred Flintstone and Barney Rubble engaging in oral sex with the employee’s operating initials, “EZ,” superimposed over Barney. The employee also claimed that his supervisor spread a rumor that he had sexual intercourse with a male controller.

In March 2020, the employee reportedly told a female coworker that if Hitler and the operations manager were in room with a gun with two bullets, he would shoot the operations manager, for which he received a letter of reprimand.

Complaints. When the female coworker brought an EEO complaint against the supervisor and operations manager, among others, the employee signed an affidavit on her behalf. Less than three weeks later, the supervisor filed a complaint about the employee’s aggressive behavior toward management and his coworkers. He also made more than a dozen claims against the employee for behavior dating back to 2017. The supervisor filed another complaint in July 2021 that contained some claims that had already been resolved, including the comment about shooting the operations manager.

While the investigation was ongoing, the employee was accused of swearing on a recorded line, of swearing at another controller, and of exhibiting a sleep-like state while on duty. Less than a week after that, he claimed that someone put homosexual pornography in his drawer on two occasions. He was issued a notice of proposed removal for the inappropriate conduct that was later cancelled and then renewed.

Threat. Days later, he received a letter at home stating “Hey you f*****g faggot you better hope and fucking pray you don’t find yourself back in area 1 or we might have ourselves an old fashion fag drag.” The letter also contained a death threat. Although he reported the incident to management and the police, they both closed the investigation for lack of evidence. After several anonymous hotline complaints were filed against him in 2023 and 2024, accusing him of, among other things, showing pornography at work and masturbating while on duty, he applied for and received medical disability.

Hostile work environment. Suing under Title VII, the employee alleged the DOT “harassed and subjected him to a hostile work environment based on his sex and sexual orientation” by fostering a hostile work environment. Rejecting the agency’s contention he could not show the harassment was based on his sexual orientation because his coworkers or supervisors did not know he was bisexual, the court noted there were rumors he and his wife were swingers and that he liked men. The employee also claimed an anonymous harasser or harassers defaced his work area with homophobic slurs and pornography on multiple occasions. Thus, the court found a material fact issue as to whether the alleged harassment was because of his sexual orientation.

Severe/pervasive. Nor was the court persuaded by the DOT’s argument that the conduct was not sufficiently severe or pervasive. The employee claimed his supervisor remarked that he was working overtime to pay for his wife’s abortion and made other remarks about his sexual orientation; the supervisor spread a rumor the employee had sexual intercourse with a male coworker; and another coworker made comments about the employee and his wife being swingers and that the employee liked men.

More significantly, said the court, there were material fact disputes as to whether the employee’s workspace was defaced with homophobic slurs and pornography of which he was the subject, including an image of Fred Flintstone and Barney Rubble engaging in oral sex with the employee’s operating initials imposed over Barney. The employee also testified that someone had put homosexual pornography in his drawer on two occasions in August 2021 and that in September, coworkers again defaced his personal space at work with homophobic slurs and graphic homosexual pornography. He was also allegedly the subject of several sexually charged anonymous hotline complaints.

While the agency argued that the employee lacked a subjective belief that the environment was abusive because he participated in identical conduct, it failed to cite to any legal authority in support of its view that his participation in identical conduct would invalidate the subjective prong of the analysis. Further, said the court, the employee disputed the claims that he had showed pornography at work and called his coworkers inappropriate names like “pussy,” “faggot,” and “dickhole.” Thus, the court found material fact issues as to whether these incidents precluded it from deciding whether the conduct was severe and pervasive.

Liability. As to whether the employee had a basis to impute liability on the agency, the court noted that while the DOT did open an investigation into one of the 2021 incidents where he found a graphic photograph in his desk, the investigation was closed “due to a lack of witnesses, there were no further logical leads to follow to identify” the culprit. Further, there was no evidence indicating the agency conducted any interviews or collected any sworn statements from the employee’s colleagues as to who they thought may have planted these images. Finding genuine issues of material fact as to whether the DOT investigated each of the employee’s claims, and if it did, whether they were conducted in good faith, the court denied summary judgment on this claim.

Retaliation. The employee next argued that the DOT retaliated against him for his protected EEO activity, including participating in his coworker’s EEO complaint. The agency argued that temporal proximity alone could not establish causation and the court agreed that “whether temporal proximity in the retaliation context can, on its own, demonstrate causation, has at times been unclear in the Sixth Circuit.” Here, however, 19 days after the employee signed the affidavit for his coworker’s EEO proceeding, his supervisor filed a hotline complaint about employee’s “aggressive or aggravated behavior towards management on his co-workers.”

This complaint, observed the court, sparked an almost yearlong investigation into the employee during which the DOT collected a dozen sworn statements and conducted several interviews with the employee’s coworkers about his behavior. In addition, many of the accusations brought against him were unsubstantiated and some that had already been resolved were reexamined. “In fact,” said the court, “most of the incidents that served as the basis for the investigation of [the employee] took place years before [he] engaged in protected activity and yet many were only reported after [he] engaged in protected activity by signing the Affidavit for [his coworker’s] EEO complaint.” For these reasons, the court found the employee presented evidence of more than just temporal proximity in support of his retaliation claim.

Pretext. The court also found sufficient evidence to show the agency did not honestly believe his infractions were the real reason for his punishment, including a remark by the operations manager when discussing the employee’s disciplinary infractions that “most of these things never should have rose *** to the level of the operations manager. But somehow, they always seemed to rise to the operations manager and above when they involved [the employee].” He also testified that he thought they were “overreaching” when they issued the notice of proposed removal against the employee. Further, in the same email where the area supervisor renewed his concern about the employee’s year-old threat to shoot him, he accused the employee of “using the EEO process like a weapon.” For all these reasons, the court denied summary judgement on this claim as well.

The case is No. 1:23-cv-02315.

Judge: Barker, P.

Attorneys: John F. Burke, III (BurkesLaw) for David Miller. Karen E. Swanson-Haan, Office of the U.S. Attorney, for Secretary of the U.S. Department of Transportation.

Cases: SexDiscrimination SexualHarassment Discrimination Retaliation OhioNews GCNNews